As we previously blogged, the State Department abruptly amended the Foreign Affairs Manual in September 2017 to provide consular officers with broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas. A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility.

To reiterate, the updated FAM provision at 9 FAM 302.9-4(B)(3)(g)(2) covers instances of conduct that may be inconsistent with representations that visa applicants made to consular officers when applying for nonimmigrant visas or to DHS officers at US ports of entry at the time of admission. The inconsistent conduct must have occurred within 90 days of entry, and the FAM instructs consular officers to presume that the applicant’s representations about engaging in status compliant activity were willful misrepresentations of his or her intention to seek a visa or entry into the United States. If the foreign national engaged in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry, no presumption of willful misrepresentation arises, although consular officers may still find facts that provide a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US. Although this provision is popularly known as the “90 Day Misrepresentation Rule ”, the FAM is not codified law or regulation, but merely sub-regulatory guidance for consular officials abroad.

The FAM cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

Engaging in unauthorized employment;

Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);

A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or

Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

A literal reading of the four criteria seem to suggest that the inconsistent activity resulting in a presumption of misrepresentation must have occurred in the absence of filing an application for change of status or adjustment of status that would otherwise authorize such an activity. The way the FAM provision literally reads is contrary to how this has previously been understood, which is that if a foreign national filed an adjustment or change of status application within 90 days of entry, it created a rebuttable presumption that the person misrepresented his or her intentions upon initial entry. Prior to the introduction of the new FAM provision, it was similarly understood that filing a change of status or adjustment of status application within 30 days created a rebuttable presumption of fraud or willful misrepresentation. If such an application was filed more than 60 days later, there would be no such presumption.

Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

Assume that a person is admitted into the United States in B-2 status for purposes of tourism but who is also an exceptional violinist. Suppose this person begins to get paid for violin performances within 30 days of admission. Such an activity would likely be inconsistent with the purpose of the B-2 visa and she would probably be presumed to have misrepresented her intentions under the 90 day guidance. On the other hand, if this person’s employer first files a change of status from B-2 to O-1B (a visa for people who can show extraordinary ability in the arts or extraordinary achievement in the motion pictures or television industry) on the 30th day, and she only begins to concertize as a violinist after the O-1B petition and request for change of status from B-2 to O-1B is approved, a literal reading of the fourth criterion suggests that the 90 day rule has not been implicated. This person undertook the work activity “for which a change of status would be required” and should not be presumed to have misrepresented under INA § 212(a)(6)(C)(i) even though the change of status application was filed within 90 days.It should be noted that this interpretation must be viewed from the State Department’s perspective that resulted in this guidance in the FAM. The USCIS, which adjudicates visa petitions within the US, will not be bound and the DOS is not trying to ask other agencies to follow this interpretation. Thus, what the DOS is really saying is that if the USCIS approves such a change of status petition that was filed within 90 days, a consular official will not find a person inadmissible for misrepresentation, if the USCIS already approved it. According to the way 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv) literally reads, which a DOS official confirmed recently at a conference, the 90 day guidance is not implicated if the foreign national files a change of status or adjustment of status application even within 90 days and then seeks to engage in conduct consistent with the new status. The guidance is implicated, rather, if the foreign national engages in conduct that is inconsistent with their present status such as working while in B-2 status without first filing and obtaining a change of status that would authorize such work activity. In other words, filing a change or adjustment of status application within 90 days of entry ought not create a presumption of willful misrepresentation for a consular officer especially if it was approved by the USCIS.

This interpretation, while at first blush appears not to square with the third criterion, 9 FAM 302.9-4(B)(3)(g)(2)(b)(iii) (“A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States”) may be harmonized if it is read in conjunction with the fourth criterion at 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv)(“Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment”).

This nuanced reading may run contrary to the way the presumption of misrepresentation has always been understood, which has meant that a nonimmigrant who entered on a B-2 visa, married a US citizen and applied for adjustment of status within 90 days would presumptively be found to have made a misrepresentation at the time of entry. Such a reading may not be universally accepted and obviously should not be relied upon until it gains more acceptance by all the agencies. It may never gain acceptance since the same language in current 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv) existed under the old version of the 30-60 day rule too and was never interpreted in this way previously. The USCIS has questioned adjustment applicants regarding their intention at the time of admission when they filed soon after entry into the US. Also, when one files a change of status from B-2 to F-1, the USCIS often questions when the applicant contacted the school from the time of admission in order to gage the applicant’s true intention and whether it was contrary to the purpose under the B-2 visa. Still, the literal reading ought to be invoked as a defense to those who have been accused of misrepresentation, but never engaged in inconsistent activity prior to filing an application for change of status or adjustment of status.

This reading also makes perfect policy sense. It makes little sense to penalize a student who has been living lawfully for years in F-1 status, and who after travelling abroad on a brief vacation marries his fiancée and files an adjustment of status application within 90 days. Under a literal reading of the FAM guidance, the presumption of fraud or misrepresentation is not implicated, although under the way it has been traditionally understood, it would be because the student unfortunately took this vacation abroad prior to his marriage and the filing of the adjustment application within 90 days. Moreover, the literal reading does not totally eviscerate the presumption of fraud or misrepresentation. The 90 day guidance would still apply to those who violate immigration laws. Thus, a person who enters as a tourist and starts working within 90 days without filing for a change of status to a nonimmigrant work visa status would implicate the rule when she next visits the US Consulate for a new visa. The prior activity would have resulted in a rebuttable presumption of fraud or misrepresentation, and she may be found inadmissible under INA § 212(a)(6)(C)(i). However, if this same person, like the violinist in our prior example, followed the law and started working only after the O-1B request for a change of status was approved, the 90 day rule ought not be implicated.

Furthermore, a person would not be able to get away when there is obvious evidence of a misrepresentation at the time of applying for a visa or upon admission. For example, if a person applies for a business visa supported by documentation to further a business purpose in the US, and upon entry, does not conduct any business activities whatsoever but instead seeks admission at a school and applies for change of status to F-1, that person would most likely be found inadmissible for misrepresenting that there was a business purpose to visit the US when there was none. A literal reading would only likely eliminate a presumption of misrepresentation where the person otherwise came to the US pursuant to the stated purpose and then applied for a change of status to perform another activity within 90 days.

The literal reading of the 90-day provision in the FAM also supports the dual intent doctrine. Notwithstanding the codification of dual intent in statute and regulation, there is a recognition of inherent dual intent in all nonimmigrant visa categories. In Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), the Board of Immigration Appeals following earlier precedents held that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” Thus, conflating a desire to remain in the United States upon the occurrence of certain conditions is not inconsistent with any nonimmigrant visa classification at the time of applying for the visa or admission. See e.g.Garavito v. INS, 901 F.2d 173 (1st Cir. 1990) (the filing of an immigrant visa petition on behalf of a foreign national does not negate nonimmigrant intent). Even the most recent change in the F-1 nonimmigrant standard implicitly allows dual intent, specifically stating that “the hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application.” 9 FAM 402.505(E)(1). Thus, persons should not be penalized if they wish to enter the US to engage in activities that may be inconsistent with their initial visa provided they pursued activities consistent with the initial purpose and then successfully file change of status or adjustment of status applications that would permit them to pursue those other activities.

While our blog by no means should serve as a green light for people to file applications to change status or adjust status within 90 days, its purpose is to at least create awareness of another way of reading the 90 day provision that makes perfect sense as it encourages lawful conduct and awareness of a potential defense to those who are found inadmissible when they filed applications within 90 days to seek permission to engage in activities that may have not been consistent with their original visa.

The times they are a-mournin' for proponents of immigrant rights and immigration reform. While Pope Francis shows the world how to love by embracing and praying with a tumor-scarred man, immigrants-rights activists and immigration-reform pragmatists are at war among themselves over tactics in the battle to achieve just solutions to our nation's dysfunctional immigration problems. They who should be allies hurl vitriol and worse at one another, as Republicans in the House and outside the chamber say that even piecemeal solutions won't occur before the current session ends, but may surface in 14 months. Meanwhile, as the House fiddles and change-agents fuss, the "Great Chopper" that is America's immigration bureaucracy continues to disaggregate lives, businesses and dreams, turning them into mourning mush. No, I'm not talking about the immigration-prison/deportation industrial complex which whirs at grotesquely efficient and fevered speeds -- that topic is grist for another post. Rather, today's blog riffs on the theme of immigration inanity played out in my last post and in several others ("Immigration Good Behavior -- a Riddle Riddled with Riddles," "Immigration Absurdity: You Can Work Here But You Can't Be Here," and "Immigration Indifference - The Adjudicator's Curse"). Today's asininity is all about abandonment, an immigration-agency notion confected, mostly without stakeholder input, by work-shirking bureaucrats rather than through the orderly, judicially-envisioned modus operandi of enacted legislation and promulgated regulations. Immigration abandonment holds that a foreign entrant who applies to extend or change nonimmigrant visa status in the U.S., and who has paid almost 300 bucks in filing fees just to make the ask, will not receive a decision on the merits but instead be peremptorily denied if s/he leaves the U.S. before an often dilatory adjudicator gets around to considering the application. Immigration abandonment also plays out in the process of applying for a green card. Although the latter form of short-changing is moistened with the sprinkled holy water of an actual agency regulation (8 CFR § 245.2(a)(4)(ii)(A)-(D)), an adjustment of status applicant -- like his nonimmigrant cousin -- is still treated as having relinquished the desire to become a permanent resident if s/he leaves the U.S., however temporarily, without special dispensation, notwithstanding that the departing individual has no desire to forswear permanent residence and despite the payment of up to $2,070 in application fees. In the case of the green card applicant, immigration abandonment can lead -- at best -- to delay and squandered filing fees, and -- at worst -- to ineligibility. The immigrant visa quota may have closed or retrogressed in the interim, thereby precluding immediate reapplication for adjustment of status. Or, the factual basis or legal grounds to adjust status may no longer exist; the American Dream of permanent U.S. residence and ultimately citizenship thus evaporating into the ether created by work-avoidant immigration officials. The consequences may be equally or more tragic in the nonimmigrant context whenever a temporary entrant seeks to extend/change visa status in the United States but needs to depart the U.S. while the application is pending. To understand why, the reader must first consider the supposed rationale and contorted logic served up by U.S. Citizenship and Immigration Services (USCIS) in this typical formulation:

The astute reader will have noted some whopping non sequiturs in the USCIS's explanation. Submission of either a timely request to extend/change status or an untimely request caused by extraordinary circumstances beyond the applicant's control (as permitted by regulation) is a reflection of behavior demonstrating a desire and intent to play by, rather than flout, the rules. Moreover, departing the U.S. need not necessarily be construed as a failure to maintain the "previously accorded nonimmigrant status." It may signify nothing more or less than a departure from the country. What the USCIS's immigration-abandonment ploy really reveals is an agency's acceptance of money under false pretenses in return for a promised service (the adjudication of a request for an immigration benefit) that is never delivered. Some would call that fraud. It is worse than fraud, however, because it also involves a waste of government resources and the utter disregard of a very relevant statute. The statute is Immigration and Nationality Act § 212(a)(9)(B)(iv) [8 U.S. Code §1182(a)(9)(B)(iv)]. This law allows a law-abiding foreign citizen to avoid temporarily the imposition of the penalties of visa voidance and the three- and ten-year bars to reentry for his or her "unlawful presence (UP)" in the United States. UP arises when an individual stays in the country longer than officially permitted, as specified in a government document containing a date-certain deadline imposed by the Attorney General or his statutory successor, the Secretary of Homeland Security. This statutory postponement or "tolling" of any period of UP is allowed in the following situation:

Tolling for good cause.-- In the case of an alien who-- has been lawfully admitted or paroled into the United States, has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General [or Secretary of Homeland Security], and has not been employed without authorization in the United States before or during the pendency of such application, [then] the calculation of the period of [UP] time specified . . . shall be tolled during the pendency of such application, but not to exceed 120 days.

When USCIS takes money without providing a decision on the merits of the change or extension of status application, then a consular officer deciding whether to issue or refuse a nonimmigrant or immigrant visa must do what the USCIS adjudicator failed to do. The consular officer must determine whether the change/extension of status application was in fact "nonfrivolous" in order for UP to be tolled. The failure of one officer to do his or her duty thus engenders government waste when another officer in a different department must deploy scarce resources and review the application (for no additional fee). Had the USCIS not relied on the immigration-abandonment notion as a way to shirk work, and had the adjudicator approved the application, the approval would essentially confirm that the application to extend or change status was indeed "nonfrivolous," as that term is defined:

To be considered nonfrivolous, the application must have an arguable basis in law and fact and must not have been filed for an improper purpose (e.g., as a groundless excuse for the applicant to remain in the U.S. to engage in activities incompatible with his/her status). To find an application nonfrivolous, it is not necessary to determine that the INS [USCIS] would have ultimately ruled in favor of the alien.9 Department of State Foreign Affairs Manual § 40.92 N5 “Tolling” for Good Cause

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So, no matter whether Congress dithers and dallies, and reformers on the left bicker and bite, the USCIS -- the adjudicative arm of the Great Chopper -- must be retooled. The agency must do its job and decide applications for which fees have been fully paid on their merits. USCIS must abandon immigration abandonment.

by Cyrus D. Mehta, ABIL LawyerThe Insightful Immigration BlogThe Department of State (DOS) recently released information about how it calculates visa availability cut-off dates. Separately, the Visa Office has released the latest November 2013 Visa Bulletin, which explains additional points and notes forward movement in the China employment-based third preference "Other Workers" category.

Visa availability calculations. DOS explained that each month, its Visa Office subdivides the annual preference and foreign state limitations into monthly allotments based on totals of documentarily qualified immigrant visa applicants reported at consular posts and U.S. Citizenship and Immigration Services offices, grouped by foreign state chargeability, preference category, and priority date. If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered "Current." For example, if the monthly allocation target is 3,000 and there is only demand for 1,000 applicants, the category will be Current. Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be "oversubscribed" and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the monthly target is 3,000 and there is demand for 8,000 applicants, it would be necessary to establish a cut-off date so that only 3,000 numbers would be allocated. In this case, the cut-off would be the priority date of the 3,001st applicant.

The DOS noted that the FY 2013 employment annual limits were reached before the end of September, and no further allocation of numbers was possible after that time. Offices continued to process employment cases, submitted them in the normal manner, and such cases were then held in the Visa Office's "Pending Demand" file. All eligible cases were then allocated employment-based numbers on October 1, 2013, under the FY 2014 annual limits.

DOS said that the number of 1-485 adjustment of status applications already filed in the employment third preference (on which U.S. Citizenship and Immigration Services (USCIS) has not yet finalized action) for countries other than India and the Philippines exceed the numbers currently available. These filings are the result of the cut-off dates for those countries having been advanced by over three years since April. DOS said that such demand must be considered in the determination of the monthly cut-off dates to prevent any unnecessary fluctuation in those dates.

The imposition of cut-off dates for some categories/countries has limited the number of applicants who have been able to file for adjustment of status with USCIS, and such applicants would not be included in the totals, DOS noted. In addition, new applicants are constantly becoming eligible for processing in categories for which cut-off dates do not apply, or for a category other than that in which they initially filed for status. Therefore, DOS said that the totals in the Visa Bulletin charts should not be interpreted to reflect the total universe of applicant demand. These totals only represent the amount of demand taken into consideration during the determination of new dates.

Visa Bulletin. The Visa Office noted in its November 2013 Visa Bulletin that:

It is important to remember that the establishment of a monthly cut-off or "Current" status for a numerically controlled category (preference or Diversity [Visa]) applies to those applicants who were reported prior to the allocation of visa numbers for that month. For example, all qualified applicants who were reported to the Visa Office in time to be included in the calculation of the September cut-offs, who had a priority date or rank-order number before the relevant September cut-off, would have been allotted visa numbers for September. There would be no expectation, however, that sufficient numbers would be available for the processing of cases which subsequently became eligible for final action during that month. Additional numbers may be allocated outside the regular monthly cycle, but only to the extent that such numbers remain available under the applicable annual limit. The availability of additional numbers is subject to change at any time and should never be taken for granted. This is especially true late in the fiscal year when numerical allocations are often close to or at the annual limits.

When applicants fail to appear 9r overcome a refusal (even for reasons beyond their control) during the original month of scheduled interview, they risk not having their case processed later in the fiscal year. This is because the establishment of a monthly cut-off or "Current" status for a numerically controlled category (preference or Diversity Visa) applies to those applicants who were reported before the allocation of visa numbers for that month.

China: Rapid forward movement of the cut-off date, as a result of there being insufficient demand to use all available numbers, allowed the category to reach the Worldwide third preference cut-off date in May 2013. The continued lack of demand has allowed the "otherwise unused" numbers available under that limit to be provided for use in the China employment third preference Other Workers category. The continued addition of those numbers has allowed the cut-off date for that category to reach the China third preference date for November. This is the same action which has been possible for the Other Worker category in other "oversubscribed" countries such as India and Mexico. A sudden increase in demand for China employment third preference visas could require corrective action in the China Other Worker cut-off date at any time.

[Blogger's note: Today's post is by guest columnist, John Klow. John is one of the most knowledgeable private citizens who understands the inner workings of U.S. Customs and Border Protection. In the post below, John elucidates the often opaque, behind-the-scenes process whereby an individual who is found inadmissible to the U.S. may apply for a temporary waiver, and, if the governmental stars are aligned, nonetheless be granted entry. Spoiler alert: The government holds all the cards -- another reason why Congress should inject a dose of due process as it struggles to reform our immigration laws.]

Back in the days of the Immigration and Naturalization Service (INS), the immigration benefits and enforcement agency operated within the Department of Justice, processing of consular nonimmigrant waivers seemed to be pretty straight forward. Applicants submitted their nonimmigrant visa applications at American consulates, and if an individual were found inadmissible to the U.S., consular officers, if so inclined, forwarded recommendations that a waiver of inadmissibility be granted to the overseas INS offices with jurisdiction to approve a waiver. The process was transparent, but decisions could take frustratingly long times -- often months, sometimes stretching to a year or more. Lengthy delays were attributable to the competing priorities assigned to the particular INS office overseas. Also, with this sort of decentralized decision-making, there was at least a perception of inconsistency of adjudications. With the creation of the Department of Homeland Security on March 1, 2003, changes came. U.S. Customs and Border Protection (CBP) decided to keep the nonimmigrant waiver decision-making process within the inspections program as it had rested in the INS days. The reasoning was that the decision of whom to admit at ports of entry was CBP’s, and CBP should not have to go to another agency for that determination. Since the immigration inspection program transferred to CBP, so also did nonimmigrant waiver decision-making authority. CBP established a single office to decide all nonimmigrant waiver cases, the Admissibility Review Office, now located in Hearnden, VA. Centralization provided a dedicated, experienced resource that could be focused on a single (or at least primary) priority to provide consistent decision-making. For consular nonimmigrant waivers, cases are forwarded electronically from the consular officer to the ARO through the State Department’s Consular Consolidated Database (CCD) by means of the Admissibility Review Information Service (ARIS). ARIS is entirely electronic (no paper), and works through secure Internet communication via the CCD. For security reasons, there is no provision for outside parties to be part of the ARIS communication process. The inability for attorneys or accredited representatives to be part of the ARIS communication between the consular officer and the ARO has led to some frustrations.What gets referred to the ARO? Only a favorable recommendation from the consular officer gets consideration by the ARO Director. Under the Immigration and Nationality Act (INA), the Attorney General (now the Secretary of Homeland Security) may approve a recommendation from the Secretary of State or the consular officer that an alien be admitted temporarily despite inadmissibility. In reality, this means that only a favorable recommendation gets consideration for approval. Without a consular recommendation for admission, the ARO Director will return the consular officer’s referral through the U.S. Department of State Visa Office, asking the Visa Office to remind the consular officer to not forward cases without a positive recommendation for approval. (See, 9 FAM 40.301 N6.1 (b))What gets forwarded with a favorable consular recommendation? One of the frustrations expressed by immigration lawyers is that carefully prepared briefs are ignored by the consular officer and never forwarded for ARO consideration. This is not an imaginary problem. Briefs, and other documentation, must be scanned by the consular post into the CCD. Scanning is labor-intensive, and utilizes valuable consular resource. 9 FAM 40.301 N2 a (3) clearly instructs that all supporting documents are to be scanned into the CCD; however, that does not always happen. ARO staff may return the referral to post, requesting additional documentation, but are more likely to request records of conviction than attorney briefs. Practitioners should use their best persuasive skills to urge the consular officers to scan important documentation into the CCD for ARO consideration.Will the ARO approval be a blanket authorization for travel? The INA requires that conditions be attached to each approval: “The Attorney General shall prescribe conditions … to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.” (INA 212(d)(3)(A).) The prescribed conditions are clearly evident on the nonimmigrant visa, as they typically are expressed as the NI category authorized, number of admissions, and validity of the visa.When is the consular recommendation forwarded? Each post will have its own review process, before the case is finalized and forwarded to the ARO. A busy post such as London (contributing roughly 20% of the world-wide total) may have several layers of review before the Chief of Consular Services will push the final send button to forward the case to the ARO. Each layer of review takes some necessary time; occasionally a practitioner will find that a case that presumably was pending with the ARO has not yet left post. Remember that the ARO Director has nothing to consider until he receives the referral through ARIS in the CCD.Are there other delays? 9 FAM 40.301 N 6.2 describes other situations when a consular post may (or must) refer the case to the Visa Office for review. Remember that any case referred to the VO must go through that clearance process before final referral to the ARO.How can a visa applicant receive expedited action from the ARO? The FAM advises that ARO decisions may take as long as 120 days. The experienced practitioner probably recognizes that 120 days is a goal that may not always be realized, and should be prepared for longer processing times. The FAM also advises that Expedited Action may be requested in truly meritorious cases. (9 FAM 40.301 N7 a.)Can an immigration lawyer communicate directly with the ARO? Another expressed frustration is the lack of a direct communication channel with the ARO. This is best explained by recognizing that the traveler’s sole application is the request for the nonimmigrant visa, pending before the consular officer. It is the consular officer’s recommendation for a nonimmigrant waiver that is forwarded to the ARO Director, and the only communication about that recommendation is between the ARO staff and the consular officer. Any attempt to communicate directly with the ARO Director is seen as an attempt to circumvent the direct communication between the consular post and the ARO through the secure process existing in ARIS and the CCD. Any inquiries about processing should be directed to the consular post where the nonimmigrant visa application is pending.Who makes the final decision? Although the ARO Director makes the decision on the consular officer’s recommendation, the consular officer has the final decision on whether to issue the visa. The ARO Director may authorize visa issuance, but the final decision rests with the consular officer and the Secretary of State.Can visa applicants or their counsel find out why the ARO Director has denied a consular officer’s favorable recommendation? Although the ARO historically has approved more than 90% of consular officers’ recommendations, some requests are denied. Both the State Department and CBP are reluctant to disclose the ARO Director’s exact reasoning, even though FOIA requests. The simple truth is that the ARO Director’s negative response, through ARIS in the CCD, will be terse, indicating “Denied”, and often advising only that “Risk of harm is too great if alien is admitted.

May a consular officer’s decision to not make a favorable recommendation be appealed? Although there is no formal appeal process, a visa applicant or her attorney may insist that the consular officer refer the case to the Visa Office for an advisory opinion if a consular officer declines or refuses to make a favorable recommendation to the ARO. (9 FAM 40.301 N6.2 a.) After review, the Visa Office may concur with the consular officer’s decision and likewise decline to offer a favorable recommendation; in that instance, the nonimmigrant visa application is denied. The applicant’s only recourse is to apply again, hopefully when circumstances are more in favor of approval. Alternatively, the Visa Office may decide to make a direct recommendation for approval to the ARO Director.What about an appeal of the ARO Director’s decision? No appeal by the alien shall lie from an adverse decision made by a Service officer on the recommendation of a consular officer or other State Department official.” 8 CFR 212.4(a)(1), final sentence. The question is – by what means could the NIV applicant appeal the denial of a consular officer’s recommendation to the ARO Director? There has been no direct application submitted by the applicant to the ARO Director. The only issue considered by the ARO Director is the consular officer’s recommendation. The consular officer’s denial of the nonimmigrant visa application is subject to the doctrine of consular nonreviewability.

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As can be seen, much about the mechanics of a nonimmigrant visa waiver is shrouded from the visa applicant and legal counsel. Hopefully, this blog post has added some transparency to a process seemingly cloaked in mystery.

89-9 Processing and Review of Visa Denials Partially implemented. Recommends that the Department of State implement changes in its procedures for review of visa applications at United States consulates abroad. The recommended changes include permitting the assistance of attorneys, increased explanation of the basis for denials, making public advisory opinions of the Visa Office, and studying the development of an administrative appeals process for visa denials. The Recommendation was transmitted to the Secretary of State and to relevant Congressional committees. In 1990, the ABA adopted a resolution supporting most elements of this recommendation [p. 56]. In 1990, the Legal Adviser of the State Department indicated, in a letter to the Chairman, that the Department was considering implementing specified parts of the Recommendation but would likely not initiate a study of the implementation of administrative appeals. In 1992, H.R. 5173 was introduced to establish a Board of Visa Appeals in the State Department. In 1993, the State Department issued a cable emphasizing the need to give explanations of the reasons for visa denials, and providing additional information in cases where an advisory opinion is being sought. (Italics in original.)

If ACUS approves the recommendation to fix the immigration removal system, that will surely change the national dialogue. Although the reincarnated ACUS hasn't yet tackled comprehensive immigration reform, this public-private partnership will deflate the arguments of immigration hardliners who oppose CRI and just hate it that border crossings are down. By showing how the system can be made more efficient, less costly and more just -- meaning that people who really ought not be here are removed quickly and cheaply, while those with equity are allowed to reclaim their quest for the American Dream -- ACUS will help force the opponents of reform to face the inevitable need to fix the two other legs of the CRI stool (the undocumented who are here and future flows of those whom we need).

Among the other ACUS proposals for consideration on June 16 is one that likewise addresses immigration dysfunctionality. As the Federal Regulations Advisor Blog describes it, the proposal would "Improv[e] Coordination of Related Agency Responsibilities:

The Committee on Collaborative Governance makes recommendations on the perceived problem of overlapping and fragmented procedures associated with assigning multiple agencies similar or related functions, or dividing authority among agencies. In reviewing the report by Jody Freeman (Harvard) and Jim Rossi (Florida State), agencies will need first to determine their jurisdiction, an issue of large concern by itself.

The problem of endemic dysfunctionality in the perpetual brouhaha that masquerades as interagency dialogue in the immigration space, however, is not one of mere perception. To be sure, sometimes the separation of functions can serve as a helpful system of checks and balances as for example when Congress wisely separated immigration enforcement from benefits adjudication in enacting the Homeland Security Act of 2002. But mostly the problems of mission creep and mission avoidance remain. Even more troubling to stakeholders is the despicable reality that immigration officials in one agency rarely learn let alone understand or master the overlapping regulations of another agency in what ACUS refers to as "shared regulatory space." So I'm delighted that ACUS is back in the immigration sandbox. Although the cynics might say that ACUS builds castles in the sand, I'm with many American forebears who would urge ACUS to continue striving. These, I fancy, would include the age-defiant Satchel Paige in the quote above and Henry David Thoreau, whom (for the sake of maintaining my sandbox metaphor) I paraphrase thusly: "If you have built castles in the [sand], your work need not be lost; that is where they should be. Now put the foundations under them."